Citation Nr: 1034182
Decision Date: 09/13/10 Archive Date: 09/21/10
DOCKET NO. 06-22 378 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York, New
York
THE ISSUES
1. Entitlement to a disability rating in excess of 10 percent
for an abdominal grenade fragment injury involving muscle group
XIX.
2. Entitlement to an initial compensable disability rating for
abdominal scars due to grenade fragment injury of abdomen.
3. Entitlement to a compensable disability rating for
hemorrhoids.
4. Entitlement to a total disability rating based on individual
unemployability due to service-connected disabilities (TDIU).
5. Entitlement to a disability rating in excess of 50 percent
for posttraumatic stress disorder (PTSD).
REPRESENTATION
Veteran represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Veteran and daughter
ATTORNEY FOR THE BOARD
Jebby Rasputnis, Associate Counsel
INTRODUCTION
The Veteran had active duty from August 1965 to October 1967.
His awards and decorations include the Purple Heart and the
Combat Infantryman's Badge.
The matter comes before the Board of Veterans' Appeals (Board) on
appeal of a May 2005 rating decision of the New York, New York
Regional office (RO) of the Department of Veterans Affairs (VA).
In July 2010, the Veteran, accompanied by his daughter and
authorized representative, appeared at a hearing held before the
below-signed Veteran's Law Judge in Portland, Oregon. A
transcript of that hearing has been associated with the claims
file.
As part of its present decision, the Board has reviewed the
record in regard to whether the Veteran was afforded his due
process rights in the development of evidence through testimony.
At the July 2010 hearing the Veteran was afforded an extensive
opportunity to present testimony, evidence, and argument. The
transcript reveals an appropriate colloquy between the Veteran
and the undersigned, in accordance with Stuckey v. West, 13 Vet.
App. 163 (1999) and Constantino v. West, 12 Vet. App. 517 (1999)
(relative to the duty of hearing officers to suggest the
submission of favorable evidence). The transcript also reflects
that the Veterans Law Judge conducted the hearing in accordance
with the statutory duties to "explain fully the issues and
suggest the submission of evidence which the claimant may have
overlooked and which would be of advantage to the claimant's
position," pursuant to 38 C.F.R. § 3.103(c)(2), as recently
explained by the Court in Bryant v. Shinseki, --- Vet. App. ----,
2010 WL 2633151 (2010).
The issue of entitlement to a disability rating in excess of 50
percent for PTSD is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The Veteran's abdominal grenade fragment wound (muscle group
XIX) is diagnosed as residuals of penetration of the rectus
abdominus with healed scars and complaints of abdominal muscle
spasms.
2. As residual of the abdominal grenade fragment wound, the
Veteran has a 3.5 cm by 2.0 cm scar along the right side of his
rectus abdominus muscle and a 12.0 cm by 3.5 cm surgical scar
along the left side of the rectus abdominal muscle; the scars are
irregular, non-painful, and slightly hypopigmented; the Veteran
has stated that the scars itch.
3. The Veteran's hemorrhoid disability manifests in small
hemorrhoids that bleed occasionally, are painful, cause
difficulty with bowel movements, and make it uncomfortable for
the Veteran to sit for prolonged periods; the hemorrhoids are not
thrombotic and not irreducible and do not produce secondary
anemia or fissures.
CONCLUSIONS OF LAW
1. The criteria for a schedular rating in excess of 10 percent
for service-connected residuals of an abdominal grenade fragment
wound have not been met. 38 U.S.C.A. § 1155 (West 2002); 38
C.F.R. § 4.73, Diagnostic Code 5319 (2009).
2. The criteria for a compensable schedular rating in for
service-connected scars residuals from an abdominal grenade
fragment wound have not been met. 38 U.S.C.A. §§ 1155, 5110
(West 2002); 38 C.F.R. §§ 3.400, 4.7 (2009); 38 C.F.R. §§ 4.114,
Diagnostic Code 7804.
3. The criteria for a compensable rating for service-connected
hemorrhoids have not been met. 38 U.S.C.A. § 1155 (West 2002);
38 C.F.R. § 4.73, Diagnostic Code 7336 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Assist and Notify
The Board has considered the Veterans Claims Assistance Act of
2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002 and Supp. 2009). The regulations
implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2009). VA has a duty to notify the
claimant of any information and evidence needed to substantiate
and complete a claim. 38 U.S.C.A. §§ 5102, 5103; see also
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
After carefully reviewed the record on appeal, the Board has
concluded that the notice requirements of VCAA have been
satisfied with respect to the issues decided herein.
The notice and assistance provisions of VCAA should be provided
to a claimant prior to any adjudication of the claim. Pelegrini
v. Principi, 18 Vet. App. 112 (2004). The RO sent the Veteran
letters in September 2003 and July 2004, prior to adjudication,
which informed him of the requirements needed to establish a
claim of entitlement to an increased evaluation. In accordance
with VCAA, the letter informed the Veteran what evidence and
information he was responsible for obtaining and the evidence
that was considered VA's responsibility to obtain.
In regard to notice, the Board observes that the Veteran was, in
a September 2008 letter, provided with notice in accordance with
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). However, the
U.S. Court of Appeals for Veterans Claims (Court) subsequently
held that VCAA notice in a claim for increased rating need not be
"veteran specific" and need not include reference to impact on
daily life or rating criteria. Vazquez-Flores v. Shinseki, 580
F.3d 1270 (2009). VA mailed the Veteran a March 2006 letter
advising him, in accordance with Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006), as to how VA determines appropriate
disability ratings and sets effective dates. As such, the Board
finds that the duty to notify has been met.
VA also has a duty to assist the claimant in obtaining evidence
necessary to substantiate a claim. In this regard, VA medical
records have been added to the claims file. There is no
indication of any outstanding evidence in this case.
VCAA also requires VA to provide a medical examination when such
an examination is necessary to make a decision on the claim. 38
U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (2009). The Veteran was
afforded VA examinations for his service-connected muscle group
injury, scars, and hemorrhoids in October 2003, March 2005, and
June 2009.
After having carefully reviewed the record on appeal, the Board
has concluded that the notice requirements of VCAA, and VA's duty
to assist the Veteran in the development of his claims, have been
satisfied with respect to the issues decided herein. The Board
also concludes that all available evidence pertinent to the claim
has been obtained, there is sufficient medical evidence on file
in order to make a decision, and the Veteran has been given ample
opportunity to present evidence and argument in support of his
claim.
In sum, the record reflects that the facts pertinent to the
claims being decided have been properly developed and that no
further development is required to comply with the provisions of
the VCAA or the implementing regulations. That is to say, "the
record has been fully developed" and it is "difficult to
discern what additional guidance VA could [provide] to the
appellant regarding what further evidence he should submit to
substantiate his claim." Conway v. Principi, 353 F. 3d. 1369
(Fed. Cir. 2004). As the Board additionally finds that general
due process considerations have been complied with by VA (see 38
C.F.R. § 3.103 (2009)), it will adjudicate the claim.
Increased Rating Claims
Disability evaluations are determined by evaluating the extent to
which a veteran's service-connected disability adversely affects
the ability to function under ordinary conditions of daily life,
including employment, by comparing symptomatology with the
criteria set forth in the Schedule for Rating Disabilities. 38
U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2009). Separate diagnostic
codes identify various disabilities and the criteria for specific
ratings.
If two disability evaluations are potentially applicable, the
higher evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that evaluation.
Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1.
After careful consideration of the evidence, any reasonable doubt
remaining will be resolved in favor of a veteran. 38 C.F.R. §
4.3.
Although a veteran's entire history is reviewed when assigning a
disability evaluation, 38 C.F.R. § 4.1 (and see Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991)), where service connection
has already been established - as in the claims for increased
ratings for the muscle group and hemorrhoid disabilities - and an
increase in the disability ratings are at issue, it is the
present levels of disability that is of primary concern.
Francisco v. Brown, 7 Vet. App. 55 (1994). However, a veteran
may experience multiple distinct degrees of disability that might
result in different levels of compensation from the time the
increased rating claim was filed until a final decision is made.
Hart v. Mansfield, 21 Vet. App. 505 (2007). In cases, such as
the claim for an initial compensable evaluation for scars, in
which the Veteran has appealed the initial rating given at the
time service connection is established, the Board must consider
the propriety of assigning one or more levels of rating, referred
to as "staged" ratings, from the initial effective date
forward, based on evidence as to the severity of disability. See
Fenderson v. West, 12 Vet. App. 119, 126-7 (1999).
The Veteran was granted service connection for the residuals of a
grenade fragment wound involving muscle group XIX, and the
current disability rating of 10 percent was assigned effective
October 1967. He was granted service connection for hemorrhoids
and assigned a noncompensable rating effective October 1967. In
a December 2003 rating decision, he was assigned a separate
noncompensable disability rating for the scars associated with
his muscle group injury, effective September 2003. The Veteran
claimed entitlement to increased ratings in September 2003.
Having carefully considered the claim in light of the record and
the applicable law, the Board is of the opinion that the
preponderance of the evidence is against assignment of increased
disability evaluations for the muscle group injuries, scars, or
hemorrhoids.
Muscle Group Injuries and Scars
VA regulations provide principles of combined ratings for muscle
injuries, including that a muscle injury rating will not be
combined with a peripheral nerve paralysis rating of the same
body part, unless the injuries affect entirely different
functions. 38 C.F.R. § 4.55(a) (2009). For rating purposes, the
skeletal muscles of the body are divided into 23 muscle groups in
five (5) anatomical regions: six (6) muscle groups for the
shoulder girdle and arm (diagnostic codes 5301 through 5306);
three (3) muscle groups for the forearm and hand (diagnostic
codes 5307 through 5309); three (3) muscle groups for the foot
and leg (diagnostic codes 5310 through 5312); six (6) muscle
groups for the pelvic girdle and thigh (diagnostic codes 5313
through 5318); and five (5) muscle groups for the torso and neck
(diagnostic codes 5319 through 5323). 38 C.F.R. § 4.55(b)
(2009).
The cardinal signs and symptoms of muscle disability are loss of
power, weakness, lowered threshold of fatigue, fatigue-pain,
impairment of coordination, and uncertainty of movement. 38
C.F.R. § 4.56(c) (2009).
Evaluation of muscle injuries as slight, moderate, moderately
severe, or severe, is based on the type of injury, the history
and complaints of the injury, and objective findings. 38 C.F.R.
§ 4.56(d) (2009). The Court, citing Robertson v. Brown, 5 Vet.
App. 70 (1993), held that 38 C.F.R. § 4.56(d) is essentially a
totality-of-the-circumstances test and that no single factor is
per se controlling. Tropf v. Nicholson, 20 Vet. App. 317 (2006).
A slight muscle injury is a simple wound to the muscle without
debridement or infection. Records of the injury are demonstrated
by a superficial wound with brief treatment and return to duty,
healing with good functional results, and no cardinal signs or
symptoms of muscle disability. The objective findings would
include a minimal scar, but no evidence of fascial defect,
atrophy, or impaired tonus and no impairment of function or
metallic fragments retained in muscle tissue. 38 C.F.R. §
4.56(d) (2009).
A moderate disability of the muscles may result from through and
through or deep penetrating wounds of relatively short track by a
single bullet or small shell or shrapnel fragment. The absence
of the explosive effect of a high velocity missile and of
residuals of debridement or of prolonged infection also reflects
moderate injury. The history of the disability should be
considered, including service department records or other
sufficient evidence of hospitalization in service for treatment
of the wound. Consistent complaints on record from the first
examination forward of one or more of the cardinal symptoms of
muscle wounds, particularly fatigue and fatigue-pain after
moderate use, and an effect on the particular functions
controlled by the injured muscles should be noted. Evidence of
moderate disability includes entrance and (if present) exit scars
which are linear or relatively small and so situated as to
indicate relatively short track of missile through muscle tissue,
signs of moderate loss of deep fascia or muscle substance or
impairment of muscle tonus, and of definite weakness or failure
in comparative tests. 38 C.F.R. § 4.56(d)(2).
A moderately severe disability of the muscles is characterized by
evidence of a through and through or deep penetrating wound by a
high velocity missile of small size or a large missile of low
velocity, with debridement or with prolonged infection, or with
sloughing of soft parts, or intramuscular scarring. Service
department records or other sufficient evidence showing
hospitalization for a prolonged period in service for treatment
of a wound of severe grade should be considered. Records in the
file of consistent complaints of cardinal symptoms of muscle
wounds should also be noted. Evidence of unemployability due to
an inability to keep up with work requirements may be considered.
Objective findings should include relatively large entrance and
(if present) exit scars so situated as to indicate the track of a
missile through important muscle groups. Indications on
palpation of moderate loss of deep fascia, or moderate loss of
muscle substance or moderate loss of normal firm resistance of
muscles compared with the sound side may be considered. Tests of
strength and endurance of the muscle groups involved may also
give evidence of marked or moderately severe loss. 38 C.F.R. §
4.56(d)(3).
A severe disability of the muscles is characterized by evidence
of through and through or deep penetrating wound due to a high
velocity missile, or large or multiple low velocity missiles, or
explosive effect of a high velocity missile, or shattering bone
fracture with extensive debridement or prolonged infection and
sloughing of soft parts, intermuscular binding, and scarring.
Service department records or other sufficient evidence showing
hospitalization for a prolonged period in service for treatment
of a wound of severe grade should be considered. Records in the
file of consistent complaints of cardinal symptoms of muscle
wounds should also be noted. Evidence of unemployability due to
an inability to keep up with work requirements may be considered.
38 C.F.R. § 4.56(d)(4).
Objective evidence of severe disability includes extensive
ragged, depressed, and adherent scars of skin so situated as to
indicate wide damage to muscle groups in the track of a missile.
Palpation shows moderate or extensive loss of deep fascia or of
muscle substance. Soft or flabby muscles in wound area. Muscles
do not swell and harden normally in contraction. Tests of
strength or endurance compared with the sound side or of
coordinated movements indicate severe impairment of function. If
present, the following are also signs of severe muscle
disability: (A) X-ray evidence of minute multiple scattered
foreign bodies indicating intermuscular trauma and explosive
effect of the missile; (B) Adhesion of scar to one of the long
bones, scapula, pelvic bones, sacrum or vertebrae, with
epithelial sealing over the bone rather than true skin covering
in an area where bone is normally protected by muscle; (C)
Diminished muscle excitability to pulsed electrical current in
electrodiagnostic tests; (D) Visible or measurable atrophy; (E)
Adaptive contraction of an opposing group of muscles; (F) Atrophy
of muscle groups not in the track of the missile, particularly of
the trapezius and serratus in wounds of the shoulder girdle; (G)
Induration or atrophy of an entire muscle following simple
piercing by a projectile. Id.
In this case, the Veteran's service-connected abdominal grenade
fragment wound has been rated under Diagnostic Code 5319 for
injuries involving muscle group XIX (the Board notes that a
January 1968 memorandum decision notes that the Veteran received
a gunshot wound to the abdomen, but a March 1968 rating decision
clarifies that he was injured by a grenade fragment). He has
been assigned a 10 percent disability rating, representing a
moderate evaluation.
Service treatment records show that the Veteran was injured by
fragments of an enemy hand grenade in Vietnam in June 1966. His
service treatment records note penetrating injury to the abdomen,
exploratory laporotomy and debridement of the abdominal wall with
delayed closure of the wound. In late June 1966, service
treatment records show that the Veteran was healing without
complications. He was assigned to limited duty in July 1966.
He reported experiencing abdominal pains in October 1966; when
seen for treatment, his scar was noted to be tender, but he was
advised to return to full duty. He received a surgical
consultation and his reported symptoms of intermittent, sharp
abdominal pain on movement was noted, but the physician stated
that he did not think the pathology was present. In December
1966 he reported experiencing urinary urgency and lower abdominal
pain, but an examination of the abdomen and genitalia was
negative; he was diagnosed with probable cystitis.
In June 1994, he was afforded a VA examination and was noted to
have experienced an in-service injury resulting in penetration of
the rectus abdominus (anterior abdominal wall). No adhesions
were noted and there was no evidence of pain, hernia, or loss of
strength.
In June 1997, he complained of abdominal cramping. Another VA
examination was provided in April 1999 and the examiner noted a
tender abdominal scar and the Veteran's complaints of
intermittent muscle spasms. The scars were described as a 3 inch
entry scar in the right upper quadrant and 2 inch epigastrum left
lateral to midline 5 inch long by 0.75 inch wide. He was
diagnosed as status post exploratory laparotomy secondary to
gunshot wound with residual tenderness at the site of scars. A
CT scan revealed no evidence of any inflammatory changes.
In January 2002 the Veteran reported experiencing some stomach
cramps. An April 2002 VA examination notes review of the claims
file and the evidence showing a fragment wound to the abdominal
wall in June 1966. The examiner opined that the residuals from
that injury were "rather mild" and noted that there was not
considerable scarring or tissue loss. The Veteran reported
intermittent abdominal muscle spasms precipitated by exercise and
lifting. Physical examination revealed healed and non-tender
scars, minimal tissue loss, mild adherence, no tendon or nerve
damage, normal muscle strength, no muscle herniation, and no loss
of muscle function. A CT scan showed a metallic fragment in the
right upper abdomen. A separate scar examination noted scars of
11 by 2.5 cm, linear, on the left abdomen and a 2 by 2.5 cm, oval
and depressed, on the mid/upper abdomen.
The Veteran was afforded an October 2003 VA examination. The
examiner noted that medical records were not available for
review, but noted that, by the Veteran's history, he received a
gunshot wound to the abdomen in 1966. The Veteran reported
experiencing intermittent abdominal muscle spasms precipitated by
heavy lifting. The examiner identified the abdominal wall as the
muscle injured and noted an entry would to the right of the
umbilicus with a 4 inch post-operative scar to the left of the
umbilicus with minimal tissue loss and adhesions at the entry
scar. He stated that there was no muscle herniation. The
Veteran was diagnosed with an old healed wound with post-
operative scars of the abdominal wall.
In March 2005 the Veteran was afforded additional examinations of
his wound and scars. The wound examiner again noted that no
medical records were available for review. The Veteran again
reported experiencing intermittent abdominal muscle spasms. The
examiner noted that the injured affected the abdominal wall, but
did not damage any tendons, bones, joints, or nerves and left
muscle strength within normal limits and without any muscle
herniation. He was diagnosed with an old gunshot wound to the
abdominal wall.
The March 2005 scar examiner noted that the Veteran reported
experiencing itching, burning, pain, and muscle spasms at the
scar sites. The scars were noted to be a depressed, atrophic 3
by 2 cm scar in the mid-abdomen and a linear, irregular,
depressed, atrophic scar 12 by 2 cm scar in the left abdomen.
The examiner noted that the left abdominal scar was superficial,
but the mid-abdominal scar was deep; both scars were noted to be
hyperpigmented. In regard to limitation caused by the scars, the
examiner noted that the Veteran reported muscle spasms when using
his abdominal muscles. He was diagnosed with multiple scars.
The Veteran was afforded another VA examination in June 2009.
The examiner noted review of his medical records. The Veteran
was noted to have received an abdominal wound during service and
to have current complaints of abdominal muscle spasms. The
examiner noted that the muscle penetrated was the rectus
abdominus and that there were no injuries to the bony
structures, nerves, or vasculature. A 3.5 by 2 cm scar was noted
along the right side of the rectus abdominus with a surgical 12
by 3.5 cm scar along the left side. The examiner noted minimal
tissue loss and that the Veteran complained of itching along the
scars. No adhesions were noted and there was no damage observed
to tendons, bones, joints, or nerves. Muscle strength was within
functional limits and there was no muscle herniation. He was
diagnosed with healed abdominal wall scars with rectus abdominus
penetration.
During a separate June 2009 scar examination, the scar
measurements were noted to have the same dimensions and locations
as stated by the abdominal wound examiner. The scar examiner
noted there was no pain upon examination of the scar, but the
Veteran did state that the area itched. There was no adhesion to
underlying tissue noted, but the scar tissue was noted to be
irregular with slight hypopigmentation, but not unstable.
Underlying tissue damage was noted due to penetration, but the
scars were not observed to cause any limitation of motion. The
Veteran was diagnosed with non-tender, well-healed scars.
The Veteran is presently rated as 10 percent disabled under
Diagnostic Code 5319 for the residuals of an injury to his left
upper back. As noted above, a 10 percent disability rating is
appropriate when there is a moderate injury to muscle group XIX.
A moderate disability of the muscles may result from through and
through or deep penetrating wounds of relatively short track by a
single bullet or small shell or shrapnel fragment. The absence
of the explosive effect of a high velocity missile and of
residuals of debridement or of prolonged infection also reflects
moderate injury. The history of the disability should be
considered, including service department records or other
sufficient evidence of hospitalization in service for treatment
of the wound. Consistent complaints on record from the first
examination forward of one or more of the cardinal symptoms of
muscle wounds, particularly fatigue and fatigue-pain after
moderate use, and an effect on the particular functions
controlled by the injured muscles should be noted. Evidence of
moderate disability includes entrance and (if present) exit scars
which are linear or relatively small and so situated as to
indicate relatively short track of missile through muscle tissue,
signs of moderate loss of deep fascia or muscle substance or
impairment of muscle tonus, and of definite weakness or failure
in comparative tests. 38 C.F.R. § 4.56(d).
The Veteran's service medical records reflect a penetrating
injury to his abdomen. VA examiners have described the effects
of the injury as mild. Although the Veteran has reported
experiencing abdominal muscle spasms, no examiner has diagnosed
any nerve injury or muscle herniation. An April 2002 CT scan
showed a single retained metal fragment in the right upper
abdomen, but a June 1997 CT scan did not show any metal
fragments. The Board has considered the history of the abdominal
injury as well as the Veteran's complaints of residual effects.
He has reported experiencing muscle spasms upon use of his
abdominal muscles. The scars have been described as round and
linear without any residual muscle weakness or any significant
tissue loss. As such, although CT scans have shown both the
absence of any retained metal fragments and the retention of a
single fragment, the Board finds that the Veteran's symptoms are
encompassed by the moderate, 10 percent disability rating and do
not approximate the criteria for a higher rating.
In order to warrant a higher, 20 percent rating, for moderately
severe muscle group injury there would need to be evidence of a
through and through or deep penetrating wound by small high
velocity missile or large low velocity missile with debridement,
prolonged infection, or sloughing of soft parts, and
intramuscular scarring. Objective findings for a higher rating
must include indications on palpation of loss of deep fascia,
muscle substance, or normal firm resistance of muscles compared
with the sound side. Tests of strength and endurance compared
with the sound side must demonstrate positive evidence of
impairment. 38 C.F.R. § 4.56(d)(3). There is no medical
evidence reflecting an appropriate injury with objective findings
warranting a moderately-severe, 20 percent rating.
As there is no evidence to support the assignment of a 20 percent
rating for residuals of shrapnel injury to muscle group XIX, the
Board finds that the assignment of a higher rating is not
warranted. As there is no medical evidence supporting an
increased rating for the residuals of the shrapnel wound to the
abdomen, there also is no basis for a staged rating pursuant to
Hart. In reaching this conclusion, the Board has considered the
applicability of the benefit-of-the-doubt doctrine. However, the
preponderance of the evidence is against the assignment of any
higher disability rating for an injury to muscle group XIX and
the benefit-of-the-doubt doctrine is not applicable. See 38
U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1
Vet. App. 49, 53- 56 (1990).
In regard to the scars residual from the in-service abdominal
injury, the Board notes that during the pendency of the appeal,
the applicable rating criteria for scars disorders, found at 38
C.F.R. § 4.118, were amended effective October 2008. However, the
October 2008 revisions are only applicable to applications for
benefits received by the VA on or after October 23, 2008. See 73
Fed. Reg. 54708 (September 23, 2008). As the Veteran filed his
claim in September 2003, only the pre-October 2008 version of the
schedular criteria is applicable. Id.
Prior to the October 2008 amendments, Diagnostic Code 7804
provided a 10 percent rating for scars that are superficial and
painful upon examination. Unlike the present criteria, there was
no limitation on awarding separate ratings for each painful scar.
However, in this case the evidence does not show that either of
the Veteran's scars are painful. Specifically, the Veteran's
scars were noted to be tender to palpation in examinations
preceding the appellate period. Since filing his claim in 2003,
he has only once, during the March 2005 VA examination, stated
that his area of his wound residuals was painful. However there
was no pain upon examination of his scars in March 2005.
Further, the scars have never been noted as unstable. As there
is no objective medical evidence that the scars are painful or
unstable, the Board finds that an initial compensable disability
rating is not warranted.
As the preponderance of the evidence is against the assignment of
a compensable rating for scars, the benefit-of-the-doubt doctrine
is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102;
Gilbert,1 Vet. App. at 53- 56.
In reaching this decision, the Board has considered the issue of
whether the Veteran's muscle group injury and scar disabilities
present such an exceptional or unusual disability picture as to
render impractical the application of the regular schedular
standards so that referral to the appropriate officials for
consideration of an extraschedular rating is warranted. See 38
C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-339
(1996). In this case, except for the initial, in-service,
surgery and recovery period, there is no medical evidence of any
periods of hospitalization or incapacitating episodes associated
with the disabilities in question.
The VA examination reports show that no medical professional has
opined that the disabilities render him unable to work and the
Veteran has not alleged that the residuals of the abdominal
injury, alone, markedly interfere with his work. Although
abdominal muscle spasms may have some adverse effect on
employment, it bears emphasis that the schedular rating criteria
are designed to take such factors into account. Indeed, the
schedule is intended to compensate for average impairments in
earning capacity resulting from service-connected disability in
civil occupations. 38 U.S.C.A. § 1155. The Board observes that
the degrees of disability specified in the rating schedule are
considered adequate to compensate for considerable loss of
working time from exacerbations or illnesses proportionate to the
severity of the several grades of disability. See 38 C.F.R. §
4.1.
Under Thun v. Peake, 22 Vet App 111 (2008), a veteran is entitled
to an extraschedular rating if the evidence presents such an
exceptional disability picture that the available schedular
evaluations for that service-connected disability are inadequate,
if the claimant's disability picture exhibits other related
factors such as those provided by the regulation as "governing
norms," and if the disability picture has attendant thereto
related factors such as marked interference with employment or
frequent periods of hospitalization.
There is no evidence to suggest that the abdominal injury
residuals have necessitated frequent periods of hospitalization
or rendered impracticable the application of the regular
schedular standards. In the absence of the evidence of such
factors meeting the first prong of Thun, the Board is not
required to remand this case to the RO for the procedural actions
outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9
Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218,
227 (1995).
Hemorrhoids
The Veteran has been in receipt of a noncompensable rating for
hemorrhoids since October 1976. Under Diagnostic Code (Code)
7336, 38 C.F.R. § 4.114, a non-compensable rating is assigned for
mild or moderate hemorrhoids. The Veteran now seeks a higher
rating. Under Code 7336, two (2) compensable ratings are
available: a 10 percent rating is provided for large or
thrombotic, irreducible hemorrhoids, with excessive redundant
tissue, evidencing frequent recurrences; and a 20 percent rating
is provided for hemorrhoids with persistent bleeding and with
secondary anemia, or with fissures. Diagnostic Code 7336, 38
C.F.R. § 4.114.
The record does not establish that a compensable rating is
warranted. There is no evidence of large or thrombotic,
irreducible hemorrhoids. He was provided a VA examination in
October 2003 that showed normal sphincter control with no
evidence of fecal leakage and reported rare red blood with
wiping, but no current bleeding. There was no evidence of
fissures or anemia or external hemorrhoids.
The Veteran was afforded another examination for his hemorrhoids
in March 2005. Review of the claims file was noted in the
examination report and, again, there was normal sphincter control
with no evidence of fecal leakage and reported rare red blood
with wiping, but no current bleeding. Although there was no
evidence of fissures or anemia, the examiner noted the presence
of external hemorrhoids.
In April 2006, the Veteran sought medical treatment for numerous
conditions and reported experiencing itching, pain, and bleeding
at times in regard to his hemorrhoids. He was advised to use a
sitz bath and was provided with a steroid suppository.
The Veteran received a colonoscopy in October 2006. There were
no hemorrhoids seen on retroflexion.
Another VA examination was afforded to the Veteran in July 2009.
He reported experiencing constant anal itching and swelling, but
no perianal discharge or incontinence. The Veteran noted
bleeding of his hemorrhoids several times a week as evidenced by
blood streaked stools. Upon examination, there was no fecal
leakage, good anal tone, no anemia, no fissures, and no current
bleeding. The examiner observed small hemorrhoids with redundant
tissue, but no thrombosis. The hemorrhoids were noted to be
reducible.
As noted, a 10 percent rating is appropriate when there are large
or thrombotic irreducible hemorrhoids, with excessive redundant
tissue, evidencing frequent recurrences. Whereas a non-
compensable rating is assigned for mild or moderate hemorrhoids.
Here the Veteran has been diagnosed with small, external
hemorrhoids that are reducible. Although the 2009 examiner
observed redundant tissue, the amount of redundant tissue was not
noted to be excessive and, regardless, the hemorrhoids were not
noted to be large or thrombotic, criteria of a compensable
rating.
Since the schedular criteria provides that a noncompensable
rating is assigned for mild or moderate internal or external
hemorrhoids (see Code 7336, 38 C.F.R. § 4.114) and there is no
evidence that the Veteran meets the criteria required for a
compensable rating, the Board finds that a compensable rating is
not warranted.
Nor does the Veteran qualify for extraschedular consideration for
his service connected hemorrhoid disability. In exceptional
cases where schedular evaluations are found to be inadequate,
consideration of an extraschedular evaluation is made. 38 C.F.R.
§ 3.321(b)(1). But if the level of severity and symptomatology
of the Veteran's service-connected disability is compared to the
established criteria found in the rating schedule and the
schedular rating is adequate, no extraschedular rating is
warranted. Thun, 22 Vet. App. at 115. As noted above, the
Veteran has small non-thrombotic hemorrhoids that do not manifest
with unusual symptoms. The pain, itching, and occasional
bleeding do not indicate an exceptional hemorrhoid disability and
there have not been any associated periods of hospitalization or
marked interference with the Veteran's employment.
When there is an approximate balance of positive and negative
evidence about a claim, reasonable doubt should be resolved in
the claimant's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102,
4.3. However, the only positive evidence here is the Veteran's
discomfort and bleeding and the presence of some redundant
tissue, but that evidence does not meet the schedular criteria
for a higher rating. And, in light of the negative evidence with
respect to required elements of a higher rating, there is not an
approximate balance of evidence. Thus, there is no reasonable
doubt to resolve. Gilbert v. Derwinski, 1 Vet. App. 49 (1990)
(benefit of the doubt rule inapplicable when the preponderance of
the evidence is against the claim).
(CONTINUED NEXT PAGE)
ORDER
Entitlement to a disability rating in excess of 10 percent for an
abdominal grenade fragment injury involving muscle group XIX is
denied.
Entitlement to an initial compensable disability rating for
abdominal scars due to grenade fragment injury of abdomen is
denied.
Entitlement to a compensable disability rating for hemorrhoids is
denied
REMAND
The Veteran has claimed entitlement to a higher initial
disability rating for PTSD. As service connection for PTSD has
already been established, and an increase in the disability
rating is at issue, it is the present levels of disability that
is of primary concern. Francisco, 7 Vet. App. 55.
VA has a duty to assist the Veteran in the development of his
claim. The claims file reflects that the last VA medical center
(VAMC) treatment notes of record are dated November 2009, the
last VA examination for PTSD was in August 2009, and the Veteran
testified in July 2010 that his PTSD had worsened since he was
last evaluated by VA. For the limited purpose of determining
whether a further VA mental disorders is appropriate, the Board
finds the Veteran credible.
While this case is in remand status, the RO/AMC must gather any
pertinent records of VA treatment after November 2009, provide
the Veteran with authorization forms for the release of any
outstanding private records, and schedule him for another VA
examination. Pursuant to 38 C.F.R. § 3.327(a) (2009),
examinations will be requested whenever VA determines, as in this
case, that there is a need to determine the exact nature, or
severity, of a disability. See also 38 C.F.R. § 3.159 (2009);
VAOPGCPREC 11-95.
The Veteran also has claimed entitlement to TDIU and the Board
observes that TDIU is an element of all appeals of an increased
rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A total
disability rating may be assigned on an extra-schedular basis,
pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for
veterans who are unemployable by reason of service-connected
disabilities, but who fail to meet the percentage standards set
forth in section 4.16(a).
Although the Veteran has reported being unable to work due to
non-service-connected back pain and his records from the Social
Security Administration reflect that he left work due to problems
with his back, the Veteran was noted to be unemployable solely
due to his PTSD in November 2009 (February and March 2009
opinions attribute unemployability to PTSD and the non-service-
connected back disability). As the record contains evidence that
the Veteran is unemployable as a result of PTSD, but he does not
meet the schedular criteria for an award of TDIU, the Board finds
that referral for consideration of an award of TDIU on an
extraschedular basis is warranted and remands the claim to the
RO/AMC for appropriate development.
Accordingly, the case is REMANDED for the following action:
1. The RO/AMC must ascertain if the Veteran
has received any VA, non-VA, or other
medical treatment, records of which are not
associated with the claims file. The
records requested must include, but are not
limited to, VA treatment after November
2009. The Veteran must be provided with the
necessary authorizations for the release of
any private treatment records not currently
on file. The RO/AMC must then seek to
obtain the identified relevant medical
treatment records and associate them with
the claims folder.
2. After the passage of a reasonable
amount of time, or upon the Veteran's
response, the RO/AMC must then schedule the
Veteran for a VA examination to determine
the current severity of his PTSD and
whether that disability renders him
unemployable. The following considerations
will govern the examination:
a. The entire claims folder and a
copy of this remand must be made
available to the examiner in
conjunction with the examination.
The examination report must reflect
review of pertinent material in the
claims folder.
b. Any necessary tests or studies
must be conducted, and all clinical
findings must be reported in
detail. The reports prepared must
be typed.
c. After reviewing the claims file
and examining the Veteran, the
examiner must provide current
findings as to the severity of the
Veteran's PTSD. In all
conclusions, the examiner must
identify and explain the medical
basis or bases, with identification
of pertinent evidence of record.
d. A Global Assessment of
Functioning score and a rationale
for that score must be provided.
The examiner must provide an
opinion as to the impact of the
Veteran's PTSD on his social and
occupational functioning and,
specifically, the degree to which
PTSD interferes with employment.
The examiner is advised that non-
service connected disabilities
(specifically the back disability)
and age are not factors for
consideration.
e. If the examiner cannot provide an
opinion without resorting to
speculation, he or she must so
state and explain why.
3. After the above has been completed, the
RO/AMC must review the claims file and
ensure that all of the foregoing
development actions have been conducted and
completed in full. If any development is
incomplete, appropriate corrective action
is to be implemented. If the requested VA
examination report does not include
adequate responses to the specific opinions
requested, it must be returned to the
providing clinician for corrective action.
4. Thereafter, the RO/AMC must consider all
of the evidence of record and readjudicate
the Veteran's claim for an increased rating
for PTSD, considering the propriety of a
"staged" rating based on any changes in
the degree of severity of that disability
during the pendency of the Veteran's
compensation claim.
If the Veteran's claim for an
increased disability evaluation of
PTSD remains denied, or if granted and
the combined evaluation does not meet
the criteria for total rating, the
RO/AMC must then refer the Veteran's
claim of entitlement to TDIU to the
Director of the Compensation and
Pension Service for extraschedular
consideration under 38 C.F.R. §
3.321(b)(1). If the Director of the
Compensation and Pension Service does
not find that an extraschedular award
is appropriate, but the RO/AMC finds
that a higher disability rating is
warranted for PTSD, the RO/AMC must
also evaluate whether a schedular
award of TDIU is appropriate.
5. If any of the benefits sought remain
denied, the Veteran and his representative
must be provided a supplemental statement of
the case (SSOC). The SSOC must contain
notice of all relevant actions taken on the
claims, to include a summary of the evidence
and applicable law and regulations
considered pertinent to the issues currently
on appeal. An appropriate period of time
should be allowed for response. Thereafter,
if indicated, the case should be returned to
the Board for appellate disposition.
The Veteran has the right to submit additional evidence and
argument on the matters the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
The Veteran is hereby notified that it is his responsibility to
report for any examination and to cooperate in the development of
the claim. The consequences for failure to report for a VA
examination without good cause may include denial of the claim.
38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran
does not report for any scheduled examination, documentation
should be obtained which shows that notice scheduling the
examination was sent to the last known address. It should also
be indicated whether any sent notice was returned as
undeliverable.
By this remand, the Board intimates no opinion as to the final
disposition of any unresolved issue. The RO and the Veteran are
advised that the Board is obligated by law to ensure that the RO
complies with its directives, as well as those of the appellate
courts. It has been held that compliance by the Board or the RO
is neither optional nor discretionary. Where the remand orders
of the Board or the Courts are not complied with, the Board errs
as a matter of law when it fails to ensure compliance. Stegall
v. West, 11 Vet. App. 268, 271 (1998).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs